Free Markets, Not Just Freedom of Religion, Threatened by ENDA

Peter Sprigg

In 2007 the U.S. House of Representatives passed the latest version of the Employment Non-Discrimination Act (ENDA), which would outlaw discrimination based on sexual orientation. This despite the outrage of homosexual activist groups over the decision by the bill's sponsor, Rep. Barney Frank (D-Mass.), to drop "gender identity" from its protective scope as being too controversial. The Senate finished its legislative session without voting on the bill.

But too many people are missing the forest for the trees when they look at this bill. What's most significant about it is not its impact on homosexual workers or religious employers-or whether it covers cross-dressers. It is the ratcheting up of federal government interference in the free market.

Almost everyone who spoke at hearings on the bill paid lip service to their opposition to "discrimination," which seems widely accepted as an unmitigated evil. But in the literal sense, the meaning of "discriminate" is "to make a distinction" between things. In this sense, every employer "discriminates" all the time . The only way to make a hiring decision without discrimination would be to put the names of all the candidates into a hat and pick one.

Instead of beginning with a consensus that "discrimination" is inherently wrong, we should begin by recognizing that some form of "discrimination" is not only inevitable, but necessary and desirable. The question for public policy, therefore, should be what forms of "discrimination" are so offensive to the national conscience that they justify forceful government interference. The burden of proof should rest on those who would deprive employers of a measure of their freedom.

The basic claim of most of the advocates of ENDA at the hearing was that discrimination is wrong if based on factors "not relevant to job performance." But again, the question is who decides what is "relevant to job performance"?

Some business groups have endorsed ENDA, and some witnesses at the hearing testified to the positive impact of their "diversity" policies and the contributions of their homosexual employees. But why compel other companies, by force of law, to adopt policies that their own companies chose voluntarily?

Of course, federal law already interferes with private employment decisions with regard to a few specific characteristics. The Civil Rights Act of 1964 bars discrimination based on "race, color, national origin, sex, and religion." The bad name given to the word "discrimination" relates primarily to our country's shameful history of racial discrimination, including over two centuries of slavery and another century of segregation. Homosexuals can claim no comparable disadvantage.

Until less than a century ago, women were not even granted the most fundamental right of voting. Again, homosexuals have no comparable claim. Protecting against religious discrimination advances the cause of religious liberty which was enshrined in our nation's Constitution at the Founding. No comparable guarantee of sexual liberty is found in the Constitution.

Generally, we grant legal protection only against "discrimination" based on characteristics that are inborn, involuntary, immutable, innocuous, and/or in the Constitution. All these criteria apply to race and sex. While there is ongoing debate about the origin of same-sex attractions, it is clear that homosexual behavior meets none of these criteria.

At the ENDA hearing, the only opposition revolved around the inadequacies of the bill's religious exemption. Rep. Frank simplified and broadened it in his revised version of the bill, but there remain serious questions as to whether any exemption would be adequate to meet the concerns of people with religious scruples against homosexual conduct. However, focusing only on the religious exemption plays into the false assumption that religious or moral objections to homosexuality are the only reason why anyone objects to this law.

Even secular employers have reason to worry about an increasing sexualization of the workplace. There is an inherent contradiction in the arguments of the advocates of ENDA, who contend that what they do in private has nothing to do with their work, but then also argue for the right to be "out of the closet" while at work.

ENDA also prepares the way for a form of reverse discrimination-against anyone who expresses disapproval of homosexual behavior. The more open homosexuals become, the more people with traditional values will be forced into the closet. This can happen even if the employee's views are expressed outside of and without reference to his work (as happened to Allstate's Matt Barber, who was fired), and even if no reference is made to sexual orientation (as happened to the City of Oakland's Good News Employee Association, which was forbidden to speak about "family values").

Usually it is social conservatives who are accused of trying to "legislate morality." Yet the idea that ENDA itself is morally neutral-focused only on "job performance"-is a smokescreen. The Civil Rights Act of 1964 was not morally neutral. It put the moral authority of the federal government on the side of those who believe that the races are completely equal, and against those who thought otherwise.

ENDA is equally fraught with moral significance. It would be an official government declaration that homosexual behavior is the equivalent of heterosexual behavior in every way, and that those who believe otherwise are bigots. This is a controversial opinion that a majority of Americans, according to polls, reject.

ENDA should be opposed by anyone who believes in freedom of speech, freedom of association, and a free-market economy.

Peter Sprigg is Vice President for Policy at Family Research Council in Washington, D.C.